Rest of arguments

THEIR EIGHTH ARGUMENT They say: “Nowadays trade marks and name brands are also registered. If others also utilize these trade marks, then from the business point of view it will be tantamount to great uncertainty and deception. Customers will be deceived. An important principle of the Shariah is that there should be no deception (or fraud) committed. Therefore, the registration and reservation of a trademark and its right, are in total compliance with the Shariah.” THE RESPONSE Registration of a trademark or of a book for the purpose of preventing deception, fraud and misleading the public, has never been contested. The issue of contention is the buying and selling of an imaginary right, and if it is assumed to be a real right, then too, its buying and selling are not lawful. Misleading people, deception and fraud are undoubtedly haraam. The argument against copyright is not directed against these evil practices. The prime aim of copyright is to prevent others from printing the book and selling it cheaply. As far as copyright is related to preventing distortion and mutilation of the text of the book, ‘copyright’ is in support of the Shariah’s prohibition of falsehood and deception. There is no need 54 to prove any right of the author on the basis of the kuffaar concept for ensuring the prohibition of deception. THEIR NINTH ARGUMENT The votaries of copyright cite the following Fatwa of Hakimul Ummat, Hadhrat Maulana Ashraf Ali Thanvi (rahmatullah alayh): “Every person has the right to keep a name for his business. But if a man has named his business ‘Ittarstan’ (for example), or ‘Gulshan-e-Adab”, and his business interests are related to this name, then others do not have the right to keep the same name. Since acquisition of wealth in the future and business interests are related to a specific name, it is permissible to take compensation of goodwill (for the name).” (Hawaadithul Fatawa, Vol. 4 –Extracted from Nizaamul Fatwa) Commenting on this Fatwa, the votaries of copyright say: In this regard the Fatwa of Hadhrat Maulana Ashraf Ali Thanvi is an eye-opener.” THE RESPONSE What about the Fatwa of Hadhrat Maulana Ashraf Ali Thanvi (rahmatullah alayh) on copyright itself? Is that Fatwa not an eye-opener on this issue? Hadhrat Maulana Ashraf Ali Thanvi (rahmatullah alayh) has explicitly prohibited copyright and refuted the claim of it being a valid right. Those who have cited his abovementioned fatwa are ignoring the fact that notwithstanding this fatwa, Hadhrat Thanvi (rahmatullah alayh) prohibited copyright. On the question of trademark, Hadhrat Thanvi also states in Imdaadul Fataawa, Vol.4, page 152, in response to the following question: “Zaid has fixed a trademark, e.g. Shamseer or Miqraadh, for certain of his products, and he has registered it with the intention of protecting his trademark to prevent others from adopting it. If Bakr also adopts the same trademark, will it be permissible or not?” ANSWER “According to the Shariah there is no violation of Zaid’s right in this. However, because of confusion, this is not permissible because people will be deceived.” 55 We have not seen the kitaab, Hawaadithul Fatwa nor do we have Nizaamul Fatwa to check the question and the context of the Fatwa. At this point while writing this book we have not been able to acquire these Fataawa kitaabs, hence we cannot comment in detail on Hadhrat Thanvi’s Fatwa pertaining to monetary compensation for a trade name. We do not know at this stage what Hadhrat Thanvi (rahmatullah alayh) had understood by the term ‘goodwill’ which the questioner had mentioned. Hadhrat uses the very same English term. The possibility of confusion, misunderstanding and inadequate information provided by the questioner are factors to be considered. Anyhow, Hadhrat Thanvi’s ruling on the prohibition of copyright is abundantly clear. His fatwa on this issue appears at the end of this book. Hadhrat Thanvi’s views on the reality of ‘trademark’ is also stated in his fatwa mentioned above, in which he says that none of the rights of the person whose trademark it is, is violated by another person’s adoption of it. Since the adoption of the trademark by another person does not prevent the first person from utilizing it, none of his Shar’i rights is violated. However, in view of the deception and confusion this may cause, it is not permissible for anyone to adopt another person’s trademark. This prohibition is not based on any notion of dharar since the Shariah does not accept decrease in sales or future profit as dharar (loss/harm). From the two abovementioned fatwas of Hadhrat Thaanvi (rahmatullah alayh), the conflict is conspicuous. The fatwa of permissibility has to be set aside since it is in conflict with Hadhrat Thanvi’s own views on this issue. It is also in conflict with the Jamhur. It cannot be accepted as a basis for the permissibility of copyright, moreover when Hadhrat Thanvi himself has declared copyright to be baatil and haraam. THEIR TENTH ARGUMENT The votaries of copyright contend that this imaginary right comes within the Shariah’s definition of maal (tradable commodity). They have made a big issue of this argument by resorting to interpretation of different definitions given by the Fuqaha of the various Math-habs. They contend that ‘maal’ is not confined to tangible objects. Even certain rights are within the scope of the 56 definition of maal. Copyright on this basis is also maal, hence trading with it is permissible. THE RESPONSE Inspite of differently worded definitions for maal given by different Fuqaha, there is no explicit mention in any of the definitions nor discernable in any of the examples that maal is anything other than tangible assets. Such rights which are saleable subject to certain conditions, are referred to as Huqooq by the Fuqaha, not as maal. Similarly, benefits which have monetary yield are called Manaafi’. The votaries themselves have conceded that such rights which are saleable belong to a particular class of Huqooq (Rights) which the Fuqaha do not regard as maal notwithstanding the permissibility of accepting monetary compensation in lieu. Let us momentarily assume that copyright is ‘maal’. The consequence of this conclusion, at most, will be the permissibility for the author to sell this ‘maal’ (which in reality is ‘maal’ in his imagination). Such a sale does not give rise to another right, viz., the right of preventing others from employing and diposing of their own maal as they deem fit. The book which another publisher has lawfully acquired is his maal. He cannot be prevented from tasarruf (operating) in his maal on the basis of someone else having similar or identical maal. Tasarruf in one’s maal is an inherent right which the owner of the maal enjoys. His inalienable right to utilize his property cannot be alienated on the basis of the argument that the author of the book will suffer loss of future monetary gain. In view of this reality, copyright becomes a useless device for the author who has an ulterior motive for having secured this imaginary right. If copyright is ‘maal’ as the votaries of it claim, they should then be treated as ‘maal’ and apply to it all the rules of the Shariah pertaining to maal. When maal is legally transferred into the ownership of a person, he is allowed to trade with this maal as he deems proper. His ownership of the maal does not entitle him to interfere with the rights of others and prevent them from selling identical maal which they possess. 57 The action of others in selling their identical maal does not interfere with the author’s action of selling his ‘maal’. Thus, copyright even if accepted to be ‘maal’ does not benefit the author in anyway since he is not allowed by the Shariah to impede the rights of others. HUQOOQ ARE NOT MAAL It is essential to understand that the votaries of copyright by giving their own personal interpretations to the several definitions of maal presented by the Fuqaha, endeavour to create the impression that maal is not necessarily tangible assets according to the Fuqaha. This impression is baseless. According to all the Fuqaha of the Hanafi Math-hab, maal is tangible asset. The liberal Molwis of this age have felt the need to interpret rights in a way to bring these within the scope of the definition of maal to enable them to gain the sanction of the Hanafi Math-hab for copyright. It is abundantly clear that according to the Hanafi Math-hab, the validity of sale depends on the items of sale being tangible commodities, i.e. maal. There is absolutely no pressing need for recourse to other Math-habs. A ruling of another Math-hab may not be incorporated into the Hanafi Math-hab merely to satisfy the pecuniary greed of some people. Only in a matter of urgency and true need shall a ruling of another Math-hab be acceptable. Besides this, copyright cannot be rendered valid on the basis of the principles of the other Math-habs as well. No Math-hab will recognize a ‘right’ which prevents the Mubaahul Asl right of others. In the definition of maal stated in Shaami, Vol. 4, page 100, the following appears: “We have earlier stated in the beginning of Kitaabul Buyoo’ the definition of Maal: It is that to which the nature (of man) inclines and its preservation for times of need is possible. With the factor of ‘iddikhaar’ (preservation), manfa’at (benefit) is excluded (from the definition of maal), for it (manfa’at) is mielk (something owned). It is not maal…………… The best is that which is stated in Ad-Durr, namely, ‘Maal is present. The nature (of man) inclines to it……Verily, in consequence of the term maujood (being present), manfa’at is excluded (from the definition of maal). Understand this well.” 58 Commenting on the issue of thaman (the price in a sale), Ibn Aabideen states: “Thaman is not the objective. It is the medium for the acquisition of the objective which is the derivation of benefit from a’yaan (tangible items).” (Shaami, Vol.4, page 100) From this explanation it is clearly understood that maal is tangible asset. It does not refer to abstract things such as manfa’at (benefit). The act of iddikhaar (preservation or storage) is clearly related to only tangible objects, hence the Fuqaha say that manfa’at (benefit) is excluded from the definition of maal. Likewise the Fuqaha exclude abstract benefits from the definition of maal with the term maujood which literary refers to the presence of tangible items, hence they say that the word ‘maujood’ in the definition excludes abstract benefits from the definition of maal. On page 3, Vol. 4, Shaami states: “Manfa’at is mielk. It is not Maal.” In the language of the Shariah, in terms of the Hanafi Math-hab, maal refers to only physical objects which have monetary value according to the Shariah. Benefits and rights are NOT classified as maal. All the desperate interpretations of the definitions have not succeeded in proving that abstract entities such as rights and benefits are maal. In Sharhus Ziyaadaat of Imaam Muhammad Bin Hasan Shaibaani, Vol. 2, page 730 it is mentioned: “Regarding Haqqut Ta-alli (the right to build on the upper floor), verily, its sale is not permissible. Similarly, the sale of the upper surface (is not permissible) because the upper surface is the roof of the lower floor, and the sale of this surface is not permissible. Similarly, if he sells the upper surface of the upper floor while there is no building on it, it is not permissible.” In Fathul Qadeer, Vol.6, page 64, it appears as follows: This mas’ala (i.e. the prohibition of selling Haqq-e-Ta-alli) is because Haqq-e-Ta-alli is not maal.” It is abundantly clear from these citations as well as from all the kutub of the Ahnaaf that only tangible/physical items are maal. Rights and benefits are not maal. 59 THEIR ELEVENTH ARGUMENT They say: A person can become the owner of a currency coin (minted by the government). Inspite of becoming the owner of the coin he may not manufacture such coins. This shows that one does not have unrestricted freedom to use one’s property as one feels. Similarly, one may not print a book without the consent of the author, inspite of one being the owner of the book. THE RESPONSE The analogy is baseless. A book cannot be argued on the basis of coins minted by the government. The supposed validity of copyright cannot be argued on the basis of the prohibition to manufacture coins like the coins minted by the government. If, it is not permissible according to the Shariah to manufacture identical coins, the impermissibility has to be based on grounds recognized by the Shariah. The Shar’i principles and reasons which render the manufacturing of such coins unlawful should be stated. If there exist valid Shar’i grounds for prohibiting such manufacturing of coins, the prohibition will apply to the act of manufacturing coins, not to prohibiting others from publishing books. For the validity of the contended prohibition, the prohibition should be independently proved on the basis of Shar’i principles, not on the basis of an example which itself stands in need of a Shar’i hukm. If the basis for the prohibition of manufacturing government-minted coins is found to exist in the publication of books by others besides the author, then such grounds should be stated. It is incorrect to merely cite an example of an act which itself stands in need of Shar’i daleel to prove the claim of prohibition. Furthermore the purposes of the two acts are vastly divergent. While the manufacturing of identical coins will lead to great confusion and fraud, publication of Deeni books serves the Deeni needs of the masses and facilitates the Islamic process of Da’wat and Tableegh. On the other hand, manufacturing identical coins will lead to deception and fraud. The masses will be the ultimate losers. It is permissible for anyone to manufacture coins, but it is not permissible to adopt any measures of falsehood, deception and fraud. This then separates the two actions. The prohibition of manufacturing 60 government-minted coins, only prevents manufacturers from using government signs, emblems and symbols. This is perfectly in order. It does not prevent others from manufacturing coins of their own design and desire. The analogy is thus false. Assuming that in the manufacturing of identical coins there is no deception and fraud, and no one will be misled to suffer any loss, then such manufacturing of coins will be one’s Mubaahul Asl right irrespective of any law prohibiting such manufacturing. The simple answer for this ‘proof’ is that it in itself is in need of a Shar’i hukm. It lacks the ability to serve as a Maqees Alahy (Basis of Deduction) for another act requiring a Shar’i hukm. THEIR TWELFTH ARGUMENT They say: “In Abu Daawood is a Hadith which has the status of being a principle or basis for the permissibility of buying and selling copyright, the right to print and patency right. The Hadith is: “Any Muslim who is the first to acquire something, becomes his property.” Hence, copyright automatically becomes the property of any Muslim who is able to first set his hands on it.” THE RESPONSE Of all their arguments, this is most probably the most weird. In fact it is downright drivel, totally unexpected of even a low-grade Molwi who has no real bond with Ilm-e-Deen. They have indeed sunk to new levels of mental imbecility by positing absolute nonsense as daleel for the haraam imaginary rights of a kaafir concept spawned by people who have been driven to insanity by the touch of shaitaan as a consequence of their insane indulgence in riba. Let us now examine the Hadith and see what exactly its meaning is. (1) “Asmar Bin Mudharris said: ‘I came to Nabi (sallallahu alayhi wasallam) and pledged allegiance to him. Then, he (sallallahu alayhi wasallam) said: ‘Whoever first reaches a water which has not been reached by a Muslim, it (the water) belongs to him.” 61 (Abu Daawood, Kitaabul Kharaaj) (2) In another version of the very same Hadith, the word (maa) instead of (maa-in) appears. Maa means ‘whatever’, and maa-in means ‘water’. The Molwi Saheb who presented this most weird argument chose the obscure version in which appears maa (whatever) for the obvious reason of eking out a drop of substantiation for the imaginary copyright. (3) As far as the sanad of the Hadith is concerned, Hadhrat Shaikh Khalil Ahmad states in Bazlul Majhood, Vol. 14, page 25 about the three female narrators in the chain “Their condition is unknown.” (4) According to Baghawi this Hadith is of the Ghareeb category. In its sanad are three consecutive females, the one narrating from the other. The attribute of gharaabat (obscurity) in the context of this particular narration is a ta’n (criticism) in view of the fact that the three female narrators in the Chain are unknown. This Hadith does not constitute a valid basis for the formulation of a hukm of halaal or haraam. (5) The Molwi Saheb who presented this narration in substantiation of copyright, mistranslated it. His erroneous translation has been mentioned above. The correct translation is stated in No.1, above. The full translation is as follows: “Asmar Bin Mudharris said: ‘I came to the Nabi (sallallahu alayhi wasallam) and took the pledge of allegiance with him. Then he (sallallahu alayhi wasallam) said: “Whoever first reaches a water which has not been reached by any Muslim, it belongs to him’. Then the people (who were present) left hastily, running and setting up markers (to stake their claim).” (6) The context of the Hadith: Rasulullah (sallallahu alayhi wasallam) was clearly referring to waterholes, water-fountains, etc. in the wilds on land which belonged to no one. The Shariah’s ruling is that whoever takes possession first of an area of land in the wilds, he becomes its owner. It is his Mubaahul Asl right. Such land becomes the property of a person on a first come first served basis. As a result of Nabi (sallallahu alayhi wasallam)’s ruling, those Sahaabah who were present rushed out and spread out all over the show to stake their claim on whatever waterhole they could locate or on whatever land they wished to take into their possession. 62 The Hadith states with the greatest clarity that the people rushed out to stake their claims. They did so by marking off the land or the water source. No one understood Rasulullah’s ruling to mean just anything anywhere in the world. (7) The Hadith does not say: “Any Muslim who takes the initiative to first acquire anything, it is his property.” This is the distorted translation of the Molwi Saheb. Even if the term ‘maa’ is accepted, then too, in the context of the Hadith the reference is undoubtedly to wild/barren lands belonging to no one. All authorities of the Shariah have understood it in this way. Besides the copyright Molwi, no one has ventured such a corrupt interpretation for this Hadith It is utterly ludicrous to accept that whatever a Muslim can lay his hands on, it becomes his property as long as another Muslim has not yet staked his claim to that object. If the stupid and weird interpretation of the Molwi Saheb is to be accepted, someone can adopt the same line of reasoning and claim on the basis of this Hadith that whatever property belongs to non-Muslims becomes the property of the first Muslim who stakes his claim on it. (8) The Hadith pertains to tangible water/land in the boondus, not to imaginary or real rights in contracts and dealings. The Hadith has absolutely no relevance with matters of trade and commerce. (9) Let us now assume that the meaning of the Hadith is as suggested by the copyright Molwi. On the basis of his reasoning, the one who lays his hands first on a book, has acquired all the rights connected with that book. While the rights of the author will be restricted to his manuscript by virtue of his prior acquisition, the rights of the owner of the book are related to his copy. In terms of the distorted translation and crooked interpretation of the copyright Molwi, ‘acquisition’ of the ‘property’ whether tangible or abstract, comes into one’s ownership as a consequence of first possession, i.e. laying your hands first on it and staking your claim. The Hadith in this regards allowed the people to stake their claim without payment of money. It was a free for all rush to stake claim of land available free of charge. Now since the one who has acquired the book, there is no doubt in it being his property. Just as the Hadith cited and interpreted by the 63 copyright Molwi, allows unfettered utilization by the stakers of their procurements, so too will this very same Hadith on the basis of the crooked logic allow any person who has acquired the book to print, and publish. The author will only have to subdue and neutralize his inordinate pecuniary greed to ungrudgingly permit the acquirer of the book to avail himself of his lawful Shar’i right of acting in his property as he deems fit. This argument is truly a glaring example of a drowning man clutching at just every passing straw. They are in entirety bereft of any constructive Shar’i argument to substantiate their assumed validity of imaginary copyright. THEIR THIRTEENTH ARGUMENT The copyright Molwi says: “In my opinion if goodwill is accepted to be a sale of ‘manfa-aha muabbadah’ (perpetual benefit) on the basis of the Shaafi and Hambali Math-habs, and accepted as being maal, then many juridical doubts and interpretations could be avoided.” THE RESPONSE This is another prototype of the system of weird reasoning. Goodwill is undoubtedly haraam. Even the copyright Molwi has conceded this fact with emphasis. The presentation of a haraam act to formulate a Shar’i hukm for another act which has all the paraphernalia of hurmat (unlawfulness/being haraam) is a conspicuous display of denudation of intelligence which is a consequence of the exercise and endeavour to accord Shar’i sanction to just every concept and practice spawned by the kuffaar. We have already made reference to the goodwill issue earlier on in this book. Here it will suffice to say that the opinion of the copyright Molwi in this regard, viz., interpreting goodwill to be manfa-at-e-muabbadah in terms of the Shaafi and Hambali Math-habs is fallacious. The fallacy of this contention is borne out by the fact that the issue of goodwill being permissible is itself flawed. It suffers of damage and flaws. It is a haraam practice which lacks the strength for being a basis of deduction even if in the Shaafi Math-hab there appears a ruling of 64 doubtful permissibility for a special type of goodwill which had existed in the community in Cairo during that time. Permissibility for a concept or practice should be evolved on solid Shar’i grounds extracted from the Sources of the Shariah, not dubious, isolated and decrepit examples of exception which have been excluded from the general rules on account of some expediency. The copyright Molwi suggests that goodwill should be legalized on the basis of it being the benefit or reward of Ijaarah (leasing). For this suggestion he expects Hanafis to resort to principles of the Shaafi and Maaliki Math-habs. Firstly he has not managed to even substantiate whether his suggestion has validity even in terms of these two Mathhabs. Secondly, should validity in accordance of the Shaafi and Hambali Math-habs be proven, then too, it will remain unlawful for Hanafis to adopt it since only dire need/urgency/emergency is a valid ground for recourse to another Math-hab. Let alone dire need, the copyright Molwi and the liberals consider only the interests of the wealthy and extremely wealthy capitalists. The attempt to gain latitude from other Math-habs for corrupt practices which are the effects of pecuniary greed, serves only to give further impetus to the misdeeds of exploitation of the capitalists. There is no basis for this interpretation other than the ‘opinion’ of the copyright Molwi. THEIR FOURTEENTH ARGUMENT They say: There are three kinds of Huqooq (Rights) as follows: (1) Huqooq-e-Dhurooriyyah (2) Huqooq-e-Asliyyah qaabil-e-Intiqaal (3) Huqooq-e-Asliyyah naqabil-e-Intiqaal Since the copyright Molwi has assigned copyright and several other haraam imaginary rights to the second category (mentioned above), we shall submit it for discussion. Huqooq-e-Asliyyah qaabil-e-Intiqaal are such rights which the Shariah awards initially. They are natural and fundamental and inalienable rights in terms of the Shariah. These rights, according to the copyright Molwi, are tradable entities, hence he has coined the 65 designation: Qaabil-e-Intiqaal or fit for transference. That is, ownership of these rights can be transferred to another person and again re-transferred to a third person and so on to successive persons, whether by sale or gift. Earlier in this discussion it was mentioned that the votaries of copyright have effectively assigned copyright and similar other imaginary haraam rights to that class of rights which are not tradable entities. This assignment was executed by the copyright Molwi himself. In so doing he had overlooked his admission and agreement that the rights of the first category are not tradable. In the abovementioned classification of three types, the nontradable rights belong to the first class, viz., Huqooq-e-Dhurooriyyah. With regard to this class of Huqooq, the copyright Molwi says: “It is not permissible to buy or sell such huqooq nor accept any other kind of exchange.” THE RESPONSE While having made this acknowledgement, the Molwi entirely forgot that he had based his case in favour of permissibility for copyright on the common illat (reason) of dafa’ dharar (to stave off harm/loss) which by his own admission is the rationale underpinning the rights of this category. In having assigned copyright to this first class, he had walked into a logical trap from which extrication is extremely awkward. He had painted himself into a corner. Due to his short-sightedness, the Molwi Saheb has now approached the subject from another angle. He has created a second category of rights which he has designated, Huqooq-e-Asliyyah Qaabil-e-Intiqaal. In formulating this category, he avers: “These rights whose sale is permissible are in the category of maal.” Although he has created this imaginary class of rights, he has failed o cite even one example of such a right which is tradable like maal in the Shariah, i.e. unrestricted buying and selling with transference of ownership from one person to another by sale or gift, etc. Being confronted by this insoluble dilemma, he seeks to writhe and slither out of the trap by subtly saying: “The second kind of rights are such huqooq 66 which are fundamentally established for a person on the basis of a Shar’i Hukm or on the basis of such Urf (norm and custom) which conforms with the general objectives of the Shariah.” He simply flounders in ambiguity. He has failed to furnish a single example of such a right in terms of the Shariah. Since there is no such second category of rights in the Shariah, he has made an attempt to introduce these examples via the window-gap of ‘urf’ left open by him. Hence he has been able to produce only a list of haraam imaginary rights and corrupt commercial practices of the kuffaar. In his fabricated second class of rights, he lists goodwill (which is pure riba and exploitation), patency right, copyright, trademark right, the right of selling names, the right of selling vacant space in the air, and the right to derive monetary benefit from business licences and permits such as export/import permits. He has failed to present any such right recognized by the Fuqaha. He has only tendered practices which are all haraam and on which exists intense controversy to this day. Each one of the listed corrupt practices has to be independently validated on a basis drawn from the Sources of the Shariah. But this, the copyright Molwi has miserably failed to do. While initially, he had placed copyright in the first category of untradeable rights, he has now assigned it to a self-fabricated second category which is non-existent in the Shariah. On the basis of far-fetched interpretation which is untenable in the Shariah on account of the impermissibility of trading in Huqooq independently, the Molwi has conferred the ruling of permissibility of buying and selling the imaginary rights of his self-fabricated second category of rights which in his mind are saleable entities. 67 THE FATWA OF HADHRAT MUFTI SAYYID LAAJPURI It is indeed surprising that a senior Mufti of the calibre of Hadhrat Mufti Sayyid Laajpuri (rahmatullah alayh) had failed to discern the incorrectness of buying and selling the imaginary copyright which is the product of the kuffaar system. The following interesting question and his surprising fatwa appear in Fataawa Rahimiyyah, Vo. 3, page 242: QUESTION: What do the Ulama of the Deen say about the following ma’alah: Zaid is a very great Aalim of the Deen He authored an elementary Deeni kitaab in which children are taught by way of question and answer the basic, necessary masaail pertaining to aqaaid (beliefs) and a’maal (deeds). This kitaab gained such popularity that numerous Madrassahs included it in their syllabus. Many people among the Ulama and traders printed the book and widely distributed it. Zaid never objected to this (publication and distribution of his kitaab by others). Sometime after Zaid’s demise, Umar printed this kitaab with the intention of disseminating the Deen and also for trade purposes. The heirs of Zaid now claim that the publication by Umar has affected their trade. Since the kitaab was printed without the permission of Zaid’s heirs, they are demanding compensation of many thousands of rupees. They have threatened to institute legal proceedings if Umar fails to pay the compensation they are demanding. The questions in this regard are: (1) Would it have been permissible for Zaid (the author) to have registered a copyright on his kitaab which deals with basic, necessary Deeni masaail thereby preventing others from printing and distributing it? (2) Is it permissible for the heirs of Zaid o resort to this action after his death? Can they prevent us from printing the kitaab? (3) Was it permissible for Zaid or is it permissible for his heirs to sell all rights of printing to a publisher or trader? Is such a sale permissible according to the Shariah? ANSWER: I speak with the taufeeq of Allah. This is a mas’alah pertaining to ijtihaad and qiyaas. In the first era (of Islam) the printing press did not exist nor did there exist the concept of monetary gain with 68 printing. Hence, no explicit ruling on this issue has been narrated. Nevertheless, even if the right of printing is accepted to be an entity without monetary value and mubaahul asl, then too, it is not permissible for all and sundry to print without the permission of the author his book to which is related his monetary and business interests. Some acts are mubaahul asl (i.e. initially permissible). However, if adoption of these acts lead to violation of another’s right or the possibility of harm (monetary loss), then the permissibility is negated. It then becomes a Shar’i prohibition, e.g. It is permissible for every Muslim man to submit a proposal to a woman of the same social class. But, it is prohibited to send a proposal on another proposal (which is still under consideration). Until such time that the woman has not rejected the first proposal the permissible act of submitting a proposal is not permissible for another Muslim. While a man is busy negotiating a price, it is not permissible for a third person to make an offer. Every person has the right to climb on top of his roof to enjoy the fresh air. However, if the purdah of the inmates of the adjoining houses is violated, then this permissible act no longer remains permissible. It is mubah (permissible) for any musalli to sit anywhere in the Musjid. No place is exclusive for any particular person. However, if someone arrives and occupies a place, and he leaves his cloth, etc. in that place, if he temporarily leaves it (to indicate that he will be returning), then it is prohibited for others to sit in his place. Allamah Shaami (rahmatullah alayh) has explained in detail that when a person’s right is related to a mubah act, then that act does not remain permissible for others. The first right of printing a book belongs to the author who had applied his strenuous efforts night and day to prepare the book. Along with disseminating Ilm, the aim is also monetary gain for the author. Hence, as long as the right of the author is connected to the book, the right of others will not apply to it. Book sellers who print the book without the permission of the author, inspite of a considerable quantity having been already printed on behalf of the author, do so for the sake of monetary profit on the basis of the popularity the book has acquired. Their excuse of desiring the dissemination of knowledge is 69 unacceptable. If they truly had in their hearts esteem for Ilm, they would have purchased the book in large quantities from the author and distribute it free to the poor. Thereby gaining thawaab. Now remains the question of whether it is permissible or not for the author to accept monetary compensation for the right of printing? Among the Huqooq-e-Mujarradah are such huqooq in which there is no monetary benefit or they cannot be made a medium for the acquisition of wealth. These rights were awarded only for warding off harm (dafa’ dharar), e.g. haqq-e-shufa’ (the preamptive right of buying a property) has been granted for the sake of safety from an evil neighbour. Undoubtedly, it is not permissible to accept monetary compensation for such rights. However, there are some such rights to which is related the monetary gain of the person concerned, either in the present or the future, e.g. haqq-e-wazaaif (the right of occupying a governmental position). It is permissible to accept monetary compensation in lieu of abdicating this right. Hadhrat Hasan (radhiyallahu anhu) had compromised his right to the khilaafat and had abdicated in favour of Hadhrat Muaawiyah (radhiyallahu anhu). He had accepted monetary compensation in lieu of giving up his right to the khilaafat. …….. Similarly is the right of printing a book when it is related to the monetary benefit of the author, whether presently or in the future. This right is established for him from the very inception. Hence it is permissible for him to accept monetary compensation (i.e. sell his right) and transfer it to another person (who pays him for this right). In the present age, in view of the abundance of means of dissemination, printing and publication, and the ways of patronage for authors, as well as the lack of sufficient capital (for an author), it is not an act of ilmi bukhl (to be miserly with knowledge) to have copyrights reserved for the author. In fact, this is in the interests of the preservation and progress of good literature. In this case (stated in the question) the loss is a loss of a benefit and that too is not fixed and is unknown, hence it does not occasion liability.” (Translated from the Urdu.) 70 Apart from the Fiqhi (Juridical) Ruling and the technicalities of the Shariah’s law pertaining to this question, Hadhrat Mufti Abdur Raheem Laajpuri Saheb (rahmatullah alayh) has inexplicably overlooked some vital issues stated in the question. These are: ? The author of the book, who was a great Aalim and a man of Taqwa had written the book for the Deeni benefit of the Ummah. ? He had not reserved any copyright for himself nor did he sell any such rights to anyone. ? During his lifetime many people, Deeni personnel (such as organisations and Ulama, as well as traders) had printed, published and disseminated the book. ? The Honourable Aalim never prevented anyone from printing and distributing the book, whether free or by selling. ? The book was introduced into the syllabus of many Madaaris. Most probably tens of thousands of Muslim children derived substantial Deeni benefit from this book. In addition, innumerable Muslims benefited from the book. Indeed, we can safely say that this great Aalim had built up a great and wonderful capital for his Aakhirah. Now even if it has to be assumed that copyright is a valid Shar’i right (but which it is not), then it is confirmed beyond every shadow of doubt that during his very lifetime, the Aalim had allowed all and sundry to assist him in piling up his capital for the Aakhirah. He had allowed everyone to print and publish his book. By the wholesale permission he had given all and sundry to print and distribute the book, he had effectively transferred his right (on the assumption that it is indeed a right) to others. Taking advantage of this transferred right, which is Mubaahul Asl for all those who desire to print and sell the book because the author had allowed them to do so, Umar had printed and distributed the book in fulfilment of the conspicuous desire of the author. After Umar had made use of his Mubaahul Asl right, the Aalim’s heirs, having no feeling for the deceased, unconcerned with the aspect of Thawaab-e-Jaariyyah for 71 the marhoom author, and concerned with only fulfilment of the dictates of their pecuniary craving, threaten to institute legal proceedings in a kaafir court against Umar who in actual fact is a benefactor of the deceased Aalim. Every Muslim understands or should understand that according to the Hadith, the dead man’s deeds come to an end, except for acts of perpetual reward (Thawaab-e-Jaariyyah) which he had left behind in this dunya.). In pursuance of this lofty and beneficial goal of the Aakhirah, the Aalim Saheb who most certainly was adorned with Noor-e-Fahm, had written the simple Deeni book for the Ummah at large, not for the pecuniary gratification of his selfish, heartless heirs who are so miserably unconcerned with the Aalim’s benefits of the Aakhirah. They are concerned with only self-gratification by satisfying their own pecuniary lust to the detriment of the one in Aalam-e-Barzakh whose wonderful avenue of Thawaab they have effectively blocked by means of their hirs (greed). True benefit is the benefit of the Aakhirah, not the material crumbs which people lick up despicably from their pecuniary plates regardless of whether such crumbs come their way in halaal or haraam ways. Instead of being the sympathisers of their deceased relative (the Aalim), they have turned into his enemies by plundering and pillaging his wealth of the Aakhirah which Umar was engaged in dispatching ahead regardless of his intention. It staggers our imagination to observe that Hadhrat Mufti Abdur Rahim Saheb, has overlooked all these salient facts and truths. Instead of offering naseehat to the gluttonous heirs intoxicated by their lust for money, he summarily in haste without pausing goes to the defence of those who are depriving the author who had transferred his right or simply allowed all and sundry to disseminate his book which he had intended for the Ummah and for his success and salvation in the Aakhirah. Hadhrat Mufti Abdur Rahim Laajpuri Saheb, undoubtedly was a great Aalim. But the errors of the Ulama are not daleel in the Shariah. Their errors should be overlooked, not cited as proof. Let us now revert to the 72 Fiqhi discussion and address some of the other comments which are unrelated to the Fiqhi dimension of this issue. (1) Hadhrat Mufti Saheb says that on the assumption that the right of printing is Mubaahul Asl, i.e. permissible for all and sundry to print a book authored by a person, then too it is not permissible for anyone to print it without the author’s consent in view of the fact that the monetary benefit or trade benefit of the author is related to the book. When such benefits are related to the book, then inspite of the Mubaahul Asl rule, no one is allowed to print it without the consent of the author. The rationale for this is that inspite of something being Mubaahul Asl, the permissibility is negated if it leads to violation of another person’s right and the possibility of dharar (loss/harm).The Mubaahul Asl act then becomes prohibited for others. In response to this, we say: In his answer, Hadhrat Mufti Saheb has acknowledged that rights which exist for the purpose of dafa’ dharar cannot be bought or sold nor may monetary compensation be taken for it. Yet, he avers that the author may sell this right. The conflict is conspicuous. Since this imaginary copyright has been assigned to the dafa’dharar category of Huqooq by the votaries of copyright themselves, as well as by Hadhrat Laajpuri (rahmatullah alayh), and since they do concede the ruling of prohibition applicable to rights in this category of Huqooq, it is illogic for them to arbitrarily insist that copyright may be traded in and money accepted in lieu. There is, therefore, no substance in this argument of Hadhrat Mufti Laajpuri (rahmatullah alayh). (2) The relationship of monetary benefit for the author is restricted to the manuscript which he has prepared. The author’s monetary benefit is not related to the book which is owned by someone else who had lawfully acquired it for the simple reason that this other book is not the author’s property. It is the property of the one who has lawfully acquired it. Since tasarruf (operation and use) in one’s own property is permissible, the owner of the book is not violating any of the rights of the author who is free to act in his own property as he deems appropriate. On the contrary, the copyright which the author reserves for himself is an interference in 73 the rights of the owner of the book. The author by virtue of this right is preventing the owner of the book from executing what is lawful for him – what is Mubaahul Asl for him. Instead of the other person violating the right of the author, the opposite is true. There is absolutely no Shar’i basis for the claim that the monetary benefit of the author is related to the book which happens to be the property of another person. His monetary agenda is related to his own manuscript or book which is his property. He has to utilize his Mubaahul Asl right in relation to his own manuscript. He has no Shar’i basis for the extension of his right of monetary benefit to the property of others. Similarly, there is no Shar’i basis for claiming that the Mubaahul Asl right of others to act in their own property is cancelled simply because the author was the first person who had written the book. This claim is simply an opinion minus a Shar’i basis. Hadhrat Mufti Laajpuri (rahmatullah alayh), like others, have sought to justify this opinion with examples such as a place in the Musjid occupied by a person. The occupation of one person cancels the Mubaahul Asl right of another person to occupy the same spot. The analogy is baseless because in the Maqees Alayh (Basis of Deduction) the right pertains to only ONE specific spot which has been occupied. This one specific spot which is occupied may not be usurped by another person while the first occupier is still occupying it. But in the case of printing a book, the printer who is not the author, is utilizing his own property—that what is in his possession. Hence, he is like the person who is already in occupation of a specific spot in the Musjid while the author who seeks to restrain him from printing the book is in the category of the second person who enters the Musjid after the first person has staked his occupation of the specific spot. This is ample for dispelling the haze which has been spread around Mubaahul Asl with the aspect of relationship of monetary benefit. The monetary benefit relationship applies to only the book/manuscript which is in the ownership of the author. The other publishers are not in any way whatsoever interfering with the author’s right to print and distribute his book. 74 (3) Hadhrat Mufti Laajpuri (rahmatullah alayh) avers that the author who has expended so much effort, has the first right to print his book. This is conceded. It never was contended by opponents of copyright, that the author enjoys no such right. The only thing which the Ulama who are against copyright, are saying is that the author has no right of preventing them from taking advantage of their Mubaahul Asl right to print the book from their own property—from the book which they had lawfully acquired. The author is the only one who has possession of the work he has written. No one prevents him from proceeding with printing his book. He is free to enter into any commercial arrangement or agreement with anyone to print and sell his book. If he is by the means, he may print it himself. Others will acquire copies of the book only after the author has arranged to have it printed. Thus, he always remains the first person to print his book. The averment of Hadhrat Mufti Saheb is therefore devoid of substance because the author is always the first one to print it. The other printers follow subsequently, after having acquired a copy of the already printed book. (4) Castigating the publishers, Hadhrat Mufti Laajpuri (rahmatullah alayh) says in his fatwa that the motive of these publishers who print without the consent of the author, inspite of the author having substantial stocks of the book, is only monetary gain Their ‘excuse’ of the desire to disseminate Ilm is unacceptable because if they were genuine, they would have purchased the books directly from the author and distribute free to the poor. This criticism is unrelated to the Fiqhi issue. It has totally no relationship with the permissibility or impermissibility of copyright and the right of others to publish the book. Hadhrat Mufti Saheb made an inexplicable criticism of the publisher while refraining from even offering naseehat to the heirs motivated by pecuniary craving. They threatened to commit the haraam act of instituting legal action in the kuffaar court against Umar (the publisher) who had acted in fulfilment of the desire of the deceased author. Hadhrat Mufti Saheb has unjustifiably assailed the intention of the publisher in this case. His niyyat is known to 75 only Allah Ta’ala. Anyhow, even if his intention in printing the book was only monetary gain, he did not violate the Shariah in embarking on the printing of the book for monetary gain. Just as all traders engage in halaal trade for a halaal earning, so too is it the publisher’s right to print the book and acquire halaal income. The criticism of Hadhrat Mufti Saheb is both unjust and incorrect, and perhaps totally unfounded because the state of a man’s heart is known to only Allah Ta’ala. Furthermore, the Mubaahul Asl right which the deceased possessed, is not transferred to his heirs. With his demise, he has taken his right with him into his grave. The heirs have absolutely no right to claim anything from the publisher who was operating in his own mielk (property). He was not violating any of their rights. For some inexplicable reason the heirs escaped criticism by Hadhrat Mufti Laajpuri (rahmatullah alayh). Regarding purchasing the books from the author who has reserved all rights of printing and publication, there is a valid reason to deter prospective bulk buyers from buying from the author or a publisher who has sole rights over the book. Since the author or his agent is the sole publisher, the price is fixed very high. He holds the monopoly. The excessively high price which sole publishers charge deters many bulkbuyers. Since Hadhrat Mufti Saheb appears to have lacked expertise and experience in this field, he unhesitatingly criticized the publisher and misunderstood the reason for not purchasing from the author or his agent. We are well-experienced in the field of publishing and distributing books. Over the past few decades we have by Allah’s fadhl and karam distributed free of charge millions of rands of Deeni books. Fortunately we do our own writing, printing, publishing and distributing. If we had been reliant on other authors who have reserved their copyrights, it would have cost ten times more than what has already been invested in the books. Ten times less people would have received the book. In our experience over the past few decades we have learnt that there are many Muslims who contribute large sums of money for printing and for free distribution of Deeni books with the niyyat of Thawaab for themselves and their deceased. There are also many Muslim organisations who distribute books free. Why should we pay R20 for a 76 book when we can print it ourselves for R5? Why pay the author or his agent R50 for a book when we are able to print the same book for R10 and distribute it free to the Ummah? Tens of thousands of Muslims who would not have received the book if it had to be purchased at the high prices fixed by the monopolising authors and their sole agents, obtain the book when the organisation of the Deeni-conscious man prints the books for the Pleasure of Allah Ta’ala. The blanket attack against the niyyat of everyone who prints Deeni books without the consent of the author is totally unjustified. It is a futile attempt to acquire the books at a very low price from those who have a monopoly. We print and distribute books, the bulk free, throughout the world. We are, therefore, in a better position to comment on this issue. While the motivation of the Muslim organisations and numerous Muslim individuals in their desire to print books and distribute as widely as possible, is Deeni and altruistic, the authors and sole publishers are generally driven along by pecuniary greed, hence their vehement objection against anyone printing the book. The stated reason for their annoyance and their desire to resort to kuffaar courts to acquire haraam ‘relief’ in the form of monetary gain usurped from Muslims with the aid of the legal system, is decrease in their sales and profits as a consequence of the competition by other publishers. But the Shariah rejects the basis of their annoyance and does not accept decrease in sales and profit a valid reason for preventing others from taking advantage of their Mubaahul Asl right. (5) In justification of buying and selling copyright, Hadhrat Mufti Laajpuri (rahmatullah alayh) presented in his fatwa the example of a governmental post. The officer in this post can accept monetary compensation in lieu of stepping down or abdicating in favour of another person. In substantiation of this permissibility, he cited the act of Hadhrat Hasan (radhiyallahu anhu) who had abandoned his claim to the Khilaafat in lieu of monetary payment to him by Hadhrat Muaawiyyah (radhiyallahu anhu) who had henceforth become the undisputed Khalifah of the Islamic Empire 77 The analogy is untenable. It is extremely far-fetched. What resemblance is there between a government officer stepping down from his post in lieu of monetary compensation, and trading with copyright as if it is material commodity? The Shar’i institution of Sulh (Compromise settlement) is well-known in the Shariah. In disputes, a compromise between the parties in lieu of money is valid in the Shariah. Such payment is not by virtue of a sale transaction. When a compromise is effected regarding rights, the one of the right abandons his haqq. The Shariah does not assign this type of agreement into the category of sales. It is termed Sulh (Settlement by Compromise). This is an independent institution of the Shariah apart from sales— buying and selling. The proponents of copyright regard this imaginary right to be a valid, tradable asset in exactly the same way as a loaf of bread is tradable. Yet they attempt to justify it with examples drawn from the department of Sulh. There is a total lack of precedents in Kitaabul Buyoo’ (The Book of Sales) for a basis to justify and validate the imaginary right fabricated by the kuffaar legal and commercial systems. In view of the absence of any basis for the sale of rights in the Shariah’s Department of Buyoo’, the votaries of copyright turn to the Department of Sulh. This is their fundamental error in the quest for a Shar’i basis to justify and validate the buying and selling of the imaginary copyright which is totally foreign to Islamic teaching, and it violently militates against the spirit of Islam which has come to secure man’s salvation in the Aakhirah. It is an obstacle in the Path of Da’wat and Tableegh. The only examples which have been presented from Kitaabul Buyoo’ to justify copyright are haqqul muroor (the right of thoroughfare), haqqe-shirb (the right of drinking water from a dam, etc.) and one or two other similar examples. But, these rights accompany the fixed property with which they go. They are not tradable entities independent of the fixed property. They are subservient to the property. On the contrary, the Fuqaha have categorically ruled that the sale of rights is prohibited. The plethora of interpretations, far-fetched and baseless, at times make the whole exercise of the votaries of copyright amusing and laughable. They have descended to ludicrous levels of interpretation in their desperation 78 for producing a valid basis to justify the buying and selling of copyright, and for the injustice of preventing others from the utilization of their Mubaahul Asl right. (6) The example of the compromise settlement between Hadhrat Hasan (radhiyallahu anhu) and Hadhrat Muaawiyyah (radhiyallahu anhu) in which the former abandoned his claim to the Khilaafat in favour of the latter, has also been tendered to justify buying and selling of the imaginary copyright. The analogy is truly ridiculous. What resemblance is there between copyright and the Institution of Khilaafate? The two armies of Islam were marching on a course of head-on collision. A life and death struggle was in the making between the two Camps of Islam, threatening the very existence of the Islamic Empire. The Christian world was looking on with high hopes of reclaiming the lands it had lost to Islam. A grave conflict developed in the ranks of the Islamic Empire. There were two adversaries laying claim to the Khilaafate. The two armies of the adversaries were marching against each other to decide their respective fates on the battlefield. In this scenario, a compromise settlement was reached in which Hadhrat Hasan (radhiyallahu anhu) abandoned his claim to the Khilaafate. There were two claimants to the same right of Khilaafate. The impending battle between the two armies was averted by the Sulh (Compromise Settlement). Among the terms was that the revenue of an entire region would be handed to Hadhrat Hasan (radhiyallahu anhu). Obviously, this revenue was not claimed for his personal self. He had his charitable projects to attend to. Whatever the case was, this episode can never constitute a basis for the lousy copyright concept introduced by the kuffaar and accorded the status of wealth or saleable commodity. The example of accepting monetary benefit for stepping down from an official post is itself flawed and in conflict with qiyaas. It cannot constitute a basis for formulating a ruling for the imaginary copyright concept of the kuffaar. Earlier, in this book, there is a discussion on this issue. See page 35. The votaries of copyright have assigned undue emphasis and preference for the exception of accepting monetary compensation for 79 abdicating an official post. In fact, they are according this peculiar and irrational exception the status of a principle, and on the basis of this baseless ‘principle’ the actual Principle of the Shariah is being abrogated. Instead of viewing copyright in the light of the Shariah’s Principle of Trading in Rights, and seeking an answer on its basis, they argue its (copyright’s) permissibility on the basis of the irrational and untenable exception of abdication in lieu of monetary compensation. THE BASIS OF SULH Sulh or a Compromise Settlement, is an independent system which is permissible in the Shariah. It has been ordained by the Shariah to settle and terminate mutual disputes. In Sulh, the settlement may be effected in exchange for maal (wealth which is confined to tangible assets to which the Shariah gives monetary value), or in exchange for manaafi’ (usufruct/ benefits). If the Sulh is maal for maal, then the rules of Bay’ (Sale) will apply And the agreement will be assigned to the category of a sale inspite of it not being a sale. However, in view of the existence of the ingredients for a valid sale, the compromise in this instance (maal for maal) is given the status of a bay’ (sale). If the Compromise is related to maal in exchange for manaafi’ (benefits), then the rules of Ijaarah (Leasing) will become applicable to the agreement. If the basis of the dispute is a Haqq (Right), it should be a right which is established and which is in the mielkiyyat (ownership) of the claimant of the right. A person cannot claim compensation for a right if he does not own the mahal (substratum) such as Haqq-e-Shuf’ah (the preamptive right of buying the adjacent property). In this case, he has no mielkiyyat (ownership) in the article of sale, viz. the building. On the otherhand, Sulh can be effected in a right if related to a mahal in which he has mielkiyyat, such as Qisaas (taking the life of a murderer) for example. In this case the heirs of the murdered person possess the mielkiyyat (ownership) of executing Qisaas in the life of the murderer. These are subtle technical Aqli Dalaail (rational arguments/proofs) of the Fuqaha which may be difficult to grasp for most people. 80 The purpose of citing this argument here is to convey that even in valid huqooq (rights) ordained by the Shariah itself, even the institution of Sulh (Compromise Settlement) with its characteristic of wide latitude and scope, does not admit permissibility of monetary compensation for certain rights. To a greater degree will the prohibition apply to imagined rights such as copyright which is a pure legal figment of the kuffaar economic system, the cornerstone of which is the institution of Riba. When even the institution of Sulh with its wide scope refuses to tolerate certain lawful Shar’i rights, then it is utterly ridiculous to seek justification with examples of Sulh for the Bay’ (Sale) of an imaginary right – a kaafirspawned ‘right’ which never existed in the Shariah and for which there are no Shar’i grounds. Those who have presented the Sulh episode of Hadhrat Hasan (radhiyallahu anhu) with Hadhrat Muaawiyyah (radhiyallahu anhu) have overlooked or have failed to understand that the Haqq of Khilaafate was established for both claimants in their respective understandings. This Right is a real right ordained by the Shariah, hence the Sulh in which maal (wealth/money/tangible assets) was involved is valid. But this Sulh was not a sale agreement which could be cited as justification for buying and selling copyright even if we have to assume that this kuffaar right is a real right. Even in the Shar’i conception of Sulh, the compromise between Hadhrat Hasan (radhiyallahu anhu) and Hadhrat Muaawiyyah (radhiyallahu anhu) is not presented as a sale agreement to which the rules of Bay’ (Sale) are applicable because the definition of Bay’ in the Shariah is “The exchange of maal for maal”, which is absent in this episode. In terms of the concept of Sulh a mutual compromise agreement will be placed in the category of a sale, only for the purpose of the invocation of all the rules (masaail) applicable to Bay’. Since the Sulh of the two noble senior Sahaabah was not an exchange of maal for maal, it is beyond the purview of the applicability of the rules of a Sale. If the liberal Molwis who are espousing the cause of copyright and all the other ‘rights’ of Jaahiliyyah introduced by the western economic system, can understand this, their confusion on the issue of rights will be dispelled, Insha’Allah. There is absolutely no resemblance between the Sulh of Hadhrat Hasan (radhiyallahu anhu) and the copyright issue. The former is a pure case of compromise settlement, not of the Bay’ (Sale) category, while the latter has 81 been assigned the status of a fully-fledged bay’ (trade) by its proponents, viz. the liberal Molwis. Furthermore, as mentioned earlier, elsewhere in this treatise, the circumstances, aims, objectives and conceptions of Khilaafate and copyright are widely divergent and vastly different. It is ludicrous to argue the one on the basis of the other. DON’T SELL ALLAH’S LAWS “They have sold the laws of Allah for a miserable price, thereby preventing (others) from His Path. Indeed, vile is what they are perpetrating.” (Surah Taubah, aayat 9) 82 SOME MORE SPURIOUS ARGUMENTS (1) One of the liberal ‘seminar’ Molwis presented the following argument at the seminar which was organised for tackling the ‘intractable’ concept of copyright, patency right, trademark right, and jaahiliyya rights of a variety of kinds: “Since there prevails Umoom Balwa in this mas’alah (of copyright), it is expedient to issue a fatwa of permissibility. There is scope for permissibility in an issue of Umoom Balwa when it is not in conflict with some Nass (Explicit law of the Shariah).” Umoom Balwa is a public state of almost total prevalence of a practice in which the entire populace is involved, and from which extrication is virtually impossible. In such instances of extensive and intensive prevalence, the Shariah allows latitude for permissibility. Consider a situation where all the water in a place is contaminated. No taahir (pure/clean) water whatsoever is available anywhere except the contaminated water pumped into the water pipes from the supplying dam. If the fatwa of prohibition is issued, then besides the futility of the fatwa it will be in conflict with the principles of the Shariah which allow for concessions and permissibility in such dire cases of need. Some people who lack respect for the Deen sarcastically remark that if a fatwa of prohibition is issued, people will perish because without water they will die. This sarcastic stupidity has no relevance to reality because no one will ever perish nor suffer in the least bit even if a fatwa of prohibition is issued when a state of Umoom Balwa exists. People, especially the masses with terrible deficiencies of Imaan in the present day, will simply laugh off the fatwa and continue enjoying the polluted sewerage water ‘purified’ by the system of purification of the kuffaar. When Muslims are no longer prepared to refrain from consuming haraam or mushtabah expensive luxuries which even the kuffaar experts have proved to be at least injurious to the physical health, and which are not at all necessary for sustaining any dimension of physical or spiritual life, then it is superfluous to make the comment of people perishing. It is for this reason that we have said that the issuance of a fatwa of 83 prohibition is futile when there is a true state of Balwa which can be likened to a state of emergency. Consider another example: Almost every medicine available nowadays contains some alcohol. Total abstention for people of weak Imaan is not possible. In view of Umoom Balwa, the fatwa of permissibility will be given even though in this age Muslims no longer require any Fatwas of the Shariah to conduct their day to day affairs. Fatwas of the Shariah applied to the ‘age of orthodoxy’ of the Sahaabah and their kind, not to the present ‘enlightened’ age of technology and science when Qur’aanic verses and Ahaadith are cited in substantiation of the permissibility of sodomy, lesbianism, abortion, female exhibition and many other evils. Let us revert from this small digression to the topic of our discussion. Umoom Balwa is a state in which indulgence in haraam or najaasat is so intensive and prevalent that abstention is either impossible or will cause real hardship which is beyond the endurance of people of weak Imaan and deficient in Taqwa. In a situation of such prevalence, there is no alternative way for the acquisition of halaal. If it is not a situation of life and death or real hardship, the mas’alah of Umoom Balwa will not apply, e.g. today interest is practised widely – intensively and extensively. Riba will not be made lawful on account of such widespread prevalence. It is not permissible to cite Umoom Balwa for abrogating the prohibition of riba. Similarly, it is incorrect to cite Umoom Balwa to proclaim as halaal the massive volume of haraam, diseased and physically and spiritually contaminated chickens processed commercially. The argument that almost all Muslims devour with relish this kind of diseased carrion has absolutely no substance in the Shariah because no one’s life is depended on devouring carrion and diseased meat. This is quickly vindicated if there is merely a scare sent up about a destructive disease raging through the chicken plants. The government will order millions of chickens to be destroyed. And, no one will perish or suffer even a tinge of hardship by abstaining from eating the diseased carrions. Similarly, inspite of meat having become almost the ‘staple’ food in affluent communities whose the members are addicted to consuming meat like carnivorous animals, and inspite of umoom balwa existing in 84 the literal (not Shar’i) sense, each and every member of such societies will abandon the consumption of meat if a ‘mad-cow’ disease rumour is rife. Immediately, the entire population will abstain from devouring such meat. And, no one will perish because there are another thousand other bounties of food provided by Allah Ta’ala, which are always available. Having understood the meaning of Umoom Balwa, the intelligent, unbiased reader will readily comprehend that the claim of Umoom Balwa in relation to copyright and patency right is truly ridiculous. Will the Muslim masses suffer undue hardship if copyright is abolished? Will anyone perish? On the contrary, abolition of copyright serves the interests of the masses in a better way. The liberal Molwi Sahib ridiculously presents the principle of Umoom Balwa in vindication of a handful of authors who are a tiny-very tinyminority in relation to the billions of souls inhabiting this earthly globe, and who are out to earn fortunes by exploiting the masses with the stratagem of monopoly legalized by the kuffaar and labelled ‘copyright and patency right’. While everyone can understand that heaven and earth have long ago been separated by the command of Allah Ta’ala, the liberal Molwi has achieved the feat of the reunification of gigantic differences. He has managed to base the imaginary right of copyright pertaining to a handful of capitalist-inclined authors on the foundation of Umoom Balwa whose invocation is allowed by the Shariah when there is no water available for survival. This argument of Umoom Balwa for justifying copyright is a real insult to intelligence and Ilm-e-Deen. The liberal Molwi committed another error in the presentation of his argument in favour of copyright. He said: “Any act becomes permissible if Umoom Balwa prevails and there is no Nass which conflicts with it.” The condition of a conflicting Nass (explicit Shari’ law) is superfluous. It has no validity in this context because a fatwa of permissibility in a state of Umoom Balwa is required to proclaim lawful what the Nass of the Shariah has made unlawful as has been explained in the example of contaminated water and alcoholic medicine. If there is no conflicting Nass there will be no need for a fatwa of permissibility even if there is no prevalence of Umoom Balwa. 85 (2) Another argument presented by the liberal Molwi is not only spurious, but is downright stupid. He avers: “Furthermore, generally there is no means of earning a livelihood for those who are involved in writing books other than printing and selling their works. Therefore, copyright should be made permissible in the same way as the later Fuqaha, seeing the state of affairs, had made permissible acceptance of monetary remuneration (wages) for teaching the Qur’aan, Hadith, Fiqh, etc. If it is not made permissible, the avenue of writing books will become extremely narrow and constricted, leading to the possible closure of this avenue.” One does not require high intelligence to understand the fallacy of this argument. Let us examine each claim in this argument. (a) Authors have no other means of livelihood other than their occupation of writing books. This arbitrary claim is devoid of substance. The rare cases of people being entirely dependent on writing books for a living, can never be a valid reason for declaring permissible what is unlawful in the Shariah. Even if we have to assume that there are some persons who are dependent on writing books for their livelihood, then too, this is not a Shar’i basis for arguing the permissibility of the imaginary copyright. Most of the authors who wrote Deeni books were pious Ulama who never reserved any book rights for themselves or for their agents. They authored their books—many books during their lifetime—while they were actively involved in other Deeni pursuits such as teaching, etc. They never were dependent on their books for a living. In fact, they did not even become involved in printing and selling the books they had authored. Others would execute these tasks and earn money while at the same time serving the Deen. Those who printed and sold the books authored by the Ulama, also were not dependent on these books for their living. They had other avenues of earning. Even those who deal exclusively in books and stationery are no dependent on printing books for their earnings. Should there be some persons who truly are dependent on their writings for a livelihood, they are not debarred from printing and selling their books. In consequence of any competition, they may earn less. But 86 what they will earn is the rizq predetermined for them by Allah Ta’ala. They will obtain only what Allah Ta’ala has ordained for them. There are also a variety of means of earnings open for the authors of book other than earning by way of haraam copyright. There is, therefore, absolutely no Shar’i grounds for legalizing this imaginary right to debar others from doing what is lawful for them. It really embarrasses us to respond to this stupid argument in which an unlawful act should be made lawful for no valid reason whatsoever. (b) Copyright should be made lawful in the same way as the later Fuqaha had made lawful wages for teaching the Qur’aan, Hadith and Fiqh. The Fuqaha-e-Mutakh-khireeen (the later Fuqaha, viz. those who flourished from the third century onwards) had ruled the permissibility of remuneration for Deeni services for a real need which had developed. They did not make such remuneration permissible to enrich a handful of authors with capitalist ideas of coining fortunes. The fatwa of the later Fuqaha was not occasioned by the need to open up avenues of earning and livelihood. Their fatwa was the effect of a state of emergency which had overtaken the Ummah. The number of Men of true Ilm and Taqwa was dwindling. People who had devoted their lives purely for the Sake of Allah Ta’ala, teaching the Deen without remuneration for only the Pleasure of Allah Ta’ala, became an extinct species of humankind. The Fatwa of the later Fuqaha was motivated by the preservation of the Deen. Even in the present age, almost all Molwis, Sheikhs, Imaams, Muaththins, etc. are mercenaries. No one is prepared to teach in a Madrasah or be the Imaam of a Musjid if high salaries are not paid. Those Deeni Ustaadhs who are sincere, they too, are deficient in Tawaakul and Taqwa, hence they will rather abandon their Deeni posts and take up some mundane employment or become involved in business. Without the fatwa of the later Fuqaha, the entire Structure of the Deen will crumble. Therefore, basing copyright on the Fatwa of the later Fuqaha is utterly baseless. While the Molwi Saheb calls for the permissibility of copyright to enable the enrichment of a handful of authors, the Fatwa of the later 87 Fuqaha is for the preservation of the Deen. The difference should be glaringly apparent. (3) The author or the inventor sells a haqq (right) which he has brought into existence. A publisher who has acquired possession of the manuscript or a manufacturer who has acquired the invented item by virtue of having acquired permission from the author/inventor has acquired this right. By acquisition of the right from the author/inventor is meant the exclusive ‘right’ of printing/manufacturing as well as the ‘right’ to debar the whole world from venturing into the sphere of printing the book or manufacturing the item. But this supposition is palpably fallacious since the acquirer’s rights in terms of the Shariah are related to only the acquired copy/product which is his property.. The writer of a book or the inventor of a product brings into existence a book and a new product respectively. These are tangible assets, not rights. There is no general right which they bring into existence as has been claimed. Any right that comes into existence is related solely to the written manuscript and to the actual tangible item invented. And, whatever rights they enjoy in even their own properties is on account of the concession of the Shariah which restricts these Mubaahul Asl rights to the property within the domain of their ownership. The teachings, principles and spirit of the Divine Shariah never condone the commission of injustice and oppression which the kuffaar concept of copyright and its associate rights entails. The proponents of copyright, patency right and Jaahiliyyah rights in general can crow and blow their horn until Doomsday, but they will miserably fail to adduce any Shar’i basis for the whimsical figments of their imagination—in fact, the imagination of the capitalist kuffaar who have grabbed all the natural sources, means and ways of earning which Islam has made waqf for all the inhabitants of the earth—for them to acquire free of charge, without payment of money, all such public assets set aside for free and productive utilization by all the inhabitants of the earth. Explicit Shar’i daleel is imperative to prove the postulation of the extension of the author’s right to every book which belongs to others. 88 The furthest this postulation may be extended is to the actual manuscript or book which is the property of the author. If he sells the manuscript or the printed books to others, there is no Shar’i evidence for claiming that the author has brought into existence such an all-pervading, omnipotent right which extends to the thousands of books lawfully acquired by others and which are the mielk of others over which the author has absolutely no jurisdiction and say regardless of the concepts and legal systems of the kuffaar. Greed, injustice and avarice are inherent branches of kufr. The proponents of copyright are in reality pandering to these vile designs which are salient characteristics of every concept spawned by the adherents of kufr. The liberal Molwis have infact become the covert ministers of the kufr economic system to administer to the Ummah, by doses, every evil economic concept which capitalism and the western cult of life give birth to in their perennial and insatiable desire for more wealth at any cost. The theme of ‘confound the masses’ permeates all economic systems generated by capitalism as well as godless socialism. The only ‘daleel’ the votaries of copyright have for this fallacious and oppressive extension of ‘right’ and haraam encroachment into the domain of the other millions of people, is the kuffaar legal system. The claim they have tendered is an arbitrary postulate devoid of any Shar’i basis. An imaginary ‘right’ or a ‘right’ spawned by the concepts of the kuffaar is not automatically transformed into a Shar’i right simply on account of its wide prevalence which they whimsically misinterpret as acceptable Shar’i Urf. There is an imperative need for a daleel of the Shariah. But the proponents of copyright have hopelessly failed to produce any acceptable daleel. They have only managed to add confusion to confusion with their wildly vacillitating interpretations of the technical definitions of the Fuqaha. Flitting from one ambiguous, in fact fallacious, postulate to another, they advance preposterous claims as if such vagaries are actual masaa-il of the Shariah. Hence, they audaciously advance claims such as ‘the author has brought into existence a right’, ‘this haqq (copyright) is maal or in the category of maal’, the author will suffer monetary loss in the absence of copyright’, 89 ‘the right which the author has created for himself extends to the million books which are owned by others’, etc. These claims form a chain of negations of the principles of the Shariah. In the endeavour to sustain the kuffaar-conceived ‘rights’, the votaries of copyright display an unacceptable propensity for flexibility and compromise with kuffaar concepts to the degree of fettering the Shariah to prevalent cults and customs which they erroneously classify as Urf sustainable by the Shariah. Abandoning the Taqleed of the Hanafi Math-hab into which they were born, bred and nurtured, spiritually, academically, morally and educationally, they exceed all bounds of intellectual toleration in their insane bid to accommodate the economic concepts of westernism within the sacred Folds of Islam in the hope of conferring divine sanctity to such evil notions of trade and commerce in which the agents of kufr specialize. In fact, in this endeavour they are akin to the mushrikeen of Arabia who proclaimed in justification of Riba: “Verily, bay’ (trade) is like riba.” Stemming from this postulate is the conclusion that riba is halaal because trade is halaal. The liberal Molwis are arguing in precise fashion. Who are they emulating? They should engage in some soulsearching and desist from posing as doctors of the Ummah with their ridiculous seminars which are tantamount to glorified picnicking. There is no goodness for the Ummah in these academies and seminars. The cardinal theme of these western-style seminars and academies is to accommodate westernism under the Umbrella of the Shariah. They, therefore, invariably look at western kufr economic concepts through glasses painted with the hues of westernism. Hence, the emphasis of their seminars is to forge Shar’i acceptance for the economic concepts of the western kuffaar. In order to succeed in their mission, they have to necessarily prove on the basis of the principles of the Shariah that copyright is in fact a Shar’i right; that this imagined right brought into existence by an author automatically brings within its purview of constraint all the books already printed, purchased and owned by others thereby effectively abrogating all the Mubaahul Asl rights which the Shariah allows owners 90 of property in terms of its principle of Haqq-e-Tasarruf (the right to operate in one’s own property). Without conclusively proving that copyright is a haqq which the Shariah recognizes, all views and claims structured on the postulate that it is a right, are futile exercises in redundancy. They endeavour to elude and divert from their baseless claim of copyright being a valid right, by embarking on deceptive and elusive discussions on the definition of maal. They have not as yet overcome their very first and fundamental hurdle in their entire exercise, namely, to prove that copyright is a valid Shar’i right. The maximum they have ventured in this regard is to put forward the arbitrary and unsubstantiated averment that copyright is a valid right because it is related to the pecuniary interests of the author. This is a ridiculous argument. It is grossly inadequate for proving the claim of copyright being a valid right recognized by the Shariah. The claim that it is related to the pecuniary interests of the author is highly erroneous because they have not as yet proven that it –this figment of kufr imagination- is a valid Shar’i right. Only if they are able to prove the validity of copyright on the basis of the principles of the Shariah, will it be acceptable to move to the next step in the argument, namely, rights are also maal. This second step is futile as long as the first claim remains unrecognised by the Shariah. To detract from the first and main attack against their claim, the proponents of copyright attempt the diversion of the labyrinthal discussion on the Shar’i concept of maal. Apart from being diversionary, it is superfluous since the second wrung in this ladder of argument can be mounted only after having successfully climbed the first wrung. They first have to satisfactorily substantiate on the basis of Shar’i principles in terms of the Hanafi Math-hab, that copyright is a tenable Shar’i right. We take the liberty to further claim that they will not be able to prove that this kufrspawned ‘right’ is a Shar’i right in terms of even the other three Mathhabs. Sight should not be lost of the prime constituent of the controversy. The very first contention of the Akaabir Ulama is that copyright is not a right. It is a claim without Shar’i basis. Every argument falls flat as long 91 as the first claim remains unproven. And, without operating within the restrictive confines of the principles of the Shariah, their claims are merely personal opinions devoid of Shar’i substance. A multiplicity of ambiguous, unfinished and unprincipled arguments presented in isolation of Shar’i principles of the Math-hab they profess to follow, has succeeded in only blurring their ideology and blunting the thrust of their so-called dalaail in vindication of copyright and the litany of other haraam western-spawned ‘rights’—riba and extortion rights. (4) They claim: Whoever prints a book without having acquired the right from its author is in reality the ‘ghaasib’ (usurper) of a ‘haqq-emaali’ (a right which has the status of wealth—tangible assets). Since in this case, it is not easy to prevent the ‘ghaasib’ from his usurping operation, it is permissible to hold the ‘ghaasib’ liable for paying compensation for the right he has usurped. Besides the Fuqaha of the other Math-habs, even the Fuqaha of the Hanafi Math-hab hold the view that in ‘such circumstances’ it is valid to hold the ghaasib liable to pay compensation for the usufruct (having derived benefit) of the misappropriated item such as the wealth of orphans and the wealth of Auqaaf (Trust Property). The “such circumstances” in the context of copyright and the law of ghasab have not been explained. This supposition is a whimsical hypothesis – a groundless assumption. No evidence other than misinterpretation of certain facts has been tendered as the starting point of this argument. Let us briefly look at these groundless assertions presented as the basis of the argument. (a) Copyright is a valid haqq. In the whole volume of ‘proofs’ on this subject the claim that copyright is a valid Shar’i right has not been proved. (b) This right is in the hukm (legal category) of maal. This is another fiction – a fiction based on the first fiction. This second claim is likewise a groundless supposition because it is structured on the first hypothesis. As long as the contention that copyright is a valid Shar’i right has not 92 been conclusively proved, all other effects raised on this premises are baatil (utterly baseless and misleading). Assuming that the first contention is vindicated (which is impossible), then too, the second supposition will remain a groundless supposition in terms of the Hanafi Math-hab. The seminar Molwis have absolutely no entitlement to dig into the other Math-habs for latitude to accommodate the inordinate pecuniary cravings of a handful of authors and inventors. (c) Whoever prints from a book which is his mielk (property) is an usurper (ghaasib) of a haqq-e-maali (a right pertaining to maal tangible-wealth). The incongruity of the seminar Molwis is truly amazing. They are at pains in their laborious exercises of ‘proving’ that huqooq (abstract rights) are maal. They have exhausted their brains in their search for verification in the fields of the other three Math-habs. They have degenerated to extremely low levels of corrupt interpretation in their process of mutilating the Hanafi definitions in the bid to convey the fallacious idea that even the Ahnaaf believe that huqooq are maal. They have tediously struggled to present a variety of exceptional cases, which are all exceptions to the general rule and governing principle of the Math-hab, to act as basis for their imaginary copyright. Inspite of all this effort, they still find themselves in an uncomfortable and awkward position, hence they flabbily acquiesce that their much-vaunted copyright which they are flaunting as maal is a haqq-e-maali. Not maal, but haqqe-maali. When a couple of dozen pages have been darkened with the ‘evidence’ to prove that rights are maal, why now condescend to a lower level, viz., haqq-e-maali? It behoves the votaries of copyright to be constant in their argumentation. In their imagination they had furnished adequate volumes of ‘proof’ to bolster their claim of copyright being ‘maal’. They should now have no reason for vacillation, swinging from one supposition to the other –from maal to haqq-e-maal. But the truth is always unnerving to opportunists who do realise the deficiencies in their case, hence this dithering and infirmness. 93 Assuming that the printer of the book whose tasarruf is in his own mielk, is a ghaasib of a haqq-e-maali, then it is incumbent to apply the rules of Ghasab (Usurpation) to him. In his unprincipled argument, the seminar Molwi assigns the printer of the book into Kitaabul Ghasab, and brands him a ghaasib. He them makes a detour and refrains from applying the hukm (effect/law) which is applicable to one who usurps a right, a benefit or an abstract entity such as a quality/attribute. Since, the Molwi is aware that the hukm of ghasab is in diametric conflict with his postulate, he bypasses it and cites two obscure examples which are exceptions to the general rule underlying ghasab. If copyright is truly a haqq-e-maali which has been usurped by the printer who derived monetary benefit from the book (which by the way is his own property), the Shariah does not hold him legally liable for the benefit he had derived from the “misappropriated” item. A usurper will pay dearly in the Hereafter for the ill-gotten benefit, but in terms of the Shariah there is no monetary compensation which could be demanded from him for the manaafi’ (usufruct/benefits) he had unlawfully enjoyed from the usurped item. Regardless of the rationale underpinning this law of the Shariah in terms of the Hanafi Math-hab, the seminar Molwis have no right to tamper with it in the attempt to produce a hybrid ruling, which is untenable in the Math-hab. If the votaries of copyright could substantiate the first premiss of their postulate, viz., copyright is a valid haqq, the effect of liability on the ghaasib of usufruct would be valid according to the Shaafi Math-hab. But, they have not proved their very primary premiss of their hypothesis even in terms of the other Math-habs. While the other Math-habs have a wider interpretation for maal, and ghasab brings in its purview liability for even usurped benefits, no grounds have been presented to vindicate the claim of copyright being a valid haqq according to the other Mathhabs. Let us assume that this feat can be achieved. Then too, it is unlawful for Hanafi Molwis to fish in the domains of other Math-habs when there is absolutely no dire need for issuing a ruling on the basis of the principles of the other Math-habs. The Deen is sacrosanct and may not 94 be tampered with to satisfy the whimsical and pecuniary cravings of men out to coin fortunes, and in the process trample on the rights Allah Ta’ala has bestowed to the public at large. The seminar Molwi has opened up the ghasab dimension in this argument, but then he veers sharply away from the effect of ghasab when he realised that the hukm is in diametric conflict with his postulate. However, in order to present a semblance of cohesion in the argument, he produces the examples of misappropriation of Auqaaf property and the property of orphans which the Fuqaha have excluded from the general law governing the ghasab of usufruct (manaafi’) as well as attributes (sifaat) of the misappropriated item. This is an example of unprincipled argumentation. It behoves the Molwi to examine the rationale for the exclusion of the two aforementioned examples. Should he discern a common ground between his copyright and the two examples, then he will have some superficial justification for having introduced the dimension of ghasab. But there is no commonality of reason (illat) between imaginary unproven copyright and Auqaaf and Orphans’ properties. There is no resemblance, hence it is erroneous and misleading to present the analogy of the two examples. The issue should be argued on the basis of the governing principle of ghasab as it applies to manaafi’ and sifaat. The seminar Molwi’s conclusion that the printer who prints the book without the consent of the author should be held liable for monetary compensation, is thus baseless. Unprincipled reasoning leads to self-contradiction. The seminar Molwi, in his attempt to seek legality for copyright, has introduced the dimension of ghasab, making the allegation that the printer who prints from a copy of a book which is his mielk, is a ghaasib (usurper) since he embarked on the printing without the consent of the author. Now, if this utterly baseless supposition has to be entertained for an argument, the Molwi Saheb will find himself sinking further into the quagmire of confusion and incongruity which he has created for himself with his patchwork of ‘dalaail’. 95 Since he has opted for ghasab, it is only logical to apply the rules of ghasab. The votaries of copyright had embarked on an extremely tedious task to ‘prove’ that copyright is maal whose buying and selling are perfectly in order even in terms of the Hanafi Math-hab. Now if it be accepted that the printer has usurped the maal of the author and with this maghsoob (usurped) maal he derived monetary gain/benefit, the rule applicable is that monetary compensation cannot be demanded from the ghaasib in lieu of the gain he had acquired from the maghsoob maal. The same rule will apply if it be accepted that the printer without consent had usurped a valid right and derived benefit there from. If a ghaasib usurps someone’s house and derives monetary gain from it by leasing it out, the owner can only reclaim his house, not the monetary gain the usurper had acquired. Since the seminar Molwi found himself in this quagmire, he sought aid from the Shaafi Math-hab to extricate him from the mental mess and confusion in which he became stuck. When the Shariah in terms of the Hanafi Math-hab does not allow monetary compensation to be taken from the usurper for even a real tangible, physical asset such as a vehicle or building from which he had derived substantial ill-gotten profit, how is it conceivable that it will permit monetary compensation for an imaginary abstract right which does not even relate exclusively to the book which belongs to the printer? The right to print the book relates to all the copies sold by the author, which is within the purview of the owner’s tasarruf in his mielk. Another severe obstacle the Hanafi votaries of copyright are confronted with is that the sale of rights independently, i.e. apart from the physical asset to which the rights are related, is baatil. A right cannot be usurped without its material commodity to which it is attached, e.g. the usufruct (benefit) of a house cannot be acquired without talking possession of the actual building; the benefit of a vehicle cannot be gained without ghasab (usurping) of the vehicle itself. Huqooq and Manaafi’ cannot be subjected to ghasab independently since these are abstract entities. In which way is the printer a ghaasib of a haqq-e-maali when he did not usurp any tangible property of the author? The book he 96 has in his possession is his own property. The absurdity of the ghasab argument is thus self-evident. Another incongruity which will be intractable for the seminar Molwis is that the sale of a product vacillitates between faasid and baatil, depending on the Math-hab, if a corrupt condition is stipulated when selling it. Since the seminar Molwis are prone to have recourse to the Shaafi and other Math-habs, we shall state the Shaafi ruling for their information: In Sharhul Muslim, Imaam Nawawi (rahmatullah alayh) says: “The Ulama said: ‘Conditions in Bay’ (Sale) and its like are of several kinds……….Among them are conditions such as excluding manfa-at (benefit/usufruct from the sale) or that the buyer sells to him (the seller) something else or leases to him a house, etc. This type of condition is baatil. It renders the transaction baatil (null and void). So have the Jamhur ruled. And, Imaam Ahmad said that two (such) conditions will render the transaction baatil. And, Allah knows best.” In Raudhatut Taalibeen, Vol. 3, page 404, Imaam Nawawi (rahmatullah alayh) says: “….A condition such as the buyer shall not take possession of what he has purchased or he shall not act in it (the item he has bought) with bay’ (i.e. he shall not sell it, etc.), or a condition like stipulating another sale (as well), or giving a loan…..These conditions and their like are faasid. They render the sale faasid.” Faasid in the Shaafi Math-hab is like Baatil in the Hanafi Math-hab in the context of Buyoo’ (Sales). The sale is rendered null and void by such corrupt stipulations which are repulsive to the Shar’i concept of Bay’. The position of the Hanafi Math-hab regarding corruptive shuroot (conditions) attached to sales is too well-known to the seminar Molwis, hence it will be an exercise in superfluity to repeat the unpalatable truths at this juncture. Suffice to say that in the unanimous ruling of the Jamhur Fuqaha of all Math-habs, a sale encumbered with corrupt stipulations is corrupt and null. Even laymen will now easily grasp from the aforegoing explanation that the author who has managed to sell 10,000 books of the first edition he had printed, is guilty of 10,000 haraam acts. The stipulation, ‘All Rights Reserved,’ which is related to the property (book) being sold has 97 been excluded from the sale. The right to reprint the book and sell it is a manfa-at which automatically accompanies the book which is being sold. The exclusion of this manfa-at is a Shart-e-Faasid which renders the sale faasid and baatil in the Hanafi Math-hab and the other three Math-habs, respectively. When a product is sold, all rights and benefits (Huqooq and Manaafi’) associated with the product have to incumbently accompany it. It is haraam to sell someone a book with the stipulation that he may not lend it to his brother to read, or he may not memorize any passages of it, or he may not photocopy any pages from it, or he may not reprint and sell it. All such corrupt conditions are negatory to the Islamic concept of Bay’. The ‘barkat’ of copyright has bestowed to the author the bounty of 10,000 baatil sales which are in fact 10,000 haraam acts or sins for the author. An added dilemma for the author and copyright Molwis is that according to the Shaafi Math-hab whose aid they repeatedly and monotonously summon when the Hanafi Math-hab blocks their avenues of technical and academic gymnastics, is that the 10,000 books sold in the baatil transactions have to be compulsorily returned to the author irrespective of the author having digested the funds. The clarity of the Shaafi Math-hab on this issue does not augur well for the seminar Molwis with their pejorative taqleed overtones, the Hanafi Math-hab in particular. Stating the position of the Shaafi Math-hab on the issue of null and void sale transactions, Imaam Nawawi (rahmatullah alayh), in Raudhatut Taalibeen, Vol. 3, page 407, writes: “When a person purchases an item in a faasid sale either on account of a faasid shart or because of some other factor, and he took possession of the item, he does not become the owner of it by possession. His tasarruf (operation/acting/dealing/wheeling) in it is not valid. It is incumbent on him to return it (to the seller). He (the buyer) is responsible for the expense incurred in returning it just as (the usurper is liable for) the usurped item. It is not permissible for him to retain the item for the purpose of gaining the refund of the price (he had paid)……(Furthermore), he is liable (to the seller) for the market-rental for the period he had held the product irrespective of whether he had 98 derived the benefit (of the item or not), or whether the item was destroyed by him……If it was destroyed by him, he is responsible for its value which is the highest amount from the day of possession to the day of destruction, just like the Maghsoob (usurped item). This is so because the Shariah commands him every moment (that the item is in his possession) to return it to its owner.” The stipulation that only the author can print the book, creates fasaad (corruption) in the sale from another angle as well. Allaamah Kaasaani states in Badaaius Sanaa’ , Vol. 5, page 169: “(Of the conditions of corruption) is (the stipulation) of a manfa-at (benefit) for either the seller or the buyer…….. (The fasaad is) because the added benefit is made conditional in the sale, and this is riba, because it is an excess which does not have anything in its exchange in the sale transaction, or it resembles riba. Verily it corrupts (renders faasid) the sale just as actual riba does.” The sale of the 10,000 books by the author is faasid since he has stipulated a manfa-at (benefit) for himself. That manfa-at is that only he may print the book, not the buyers and owners of the 10,000 books. The sale of all the 10,000 books is thus invalid. Preventing the owner of the book from tasarruf (operating) in the book, is in conflict with the Shar’i consequences of Bay’ (Sale). Allaamah Kaasaani states in Badaaius Sanaa’, Vol. 5, page 169: “Verily, the (sale) transaction demands mielk (ownership), and mielk in turn demands unrestricted tasarruf (operation) in the mamlook (the purchased item which came into ownership of the buyer),” Copyright is thus untenable and haraam. It places restrictions on the unfettered right of Tasarruf fil Mielk (i.e. to use one’s property in whatever lawful manner one desires). The Fuqaha have explicitly mentioned that the condition of debarring the buyer from selling the purchased item renders the sale faasid. “If a garment is sold on condition that he (the buyer) shall not sell it (the bay’ is faasid).” Badaaius Sanaai’, Vol.5, Page 170 The author sells his printed books with the condition that the buyers may not reprint and sell it. This creates fasaad in the sale. Such a sale is in the category of riba. 99 The dilemma of perplexing incongruities of the seminar Molwis arises from the deviant Talfeeq echo which is discernible behind the liberal voice of the votaries of copyright. (Talfeeq is the unlawful admixture of Math-habs. The unprincipled selection of masaail from different Mathhabs for the preparation of a concocted potion to satisfy the demands of liberalism – nafsaaniyat – is Talfeeq which is berated by all Math-habs). (5) In his inordinate desire to promote the case of copyright, the seminar Molwi says: “But, if we reflect then it will be realized that the istidlaal (analogical deduction) of Shaami is bereft of weight. Just as haqq-emuroor (the right of thoroughfare) is related to the surface of the earth, so too is haqq-e-ta-alli (the right of the vacant space above the upper floor) related to the built house (below). Even the surface of the ground is full of air and so is the upper surface of the building (on which there is no other building). Hence, Qiyaas demands that there should be permission for the sale of Ilw (the vacant space on top of a building).” In his audacity, the Molwi has summarily dismissed as invalid the fourteen century Fatwa of countless thousands of Ahnaaf Fuqaha and Ulama on the question of the sale of vacant space on top of the roof of a building. For 14 centuries the Hanafi fatwa has prohibited the sale of what is termed haqq-e-ta-alli. In this belated age, there have sprouted up some seminar Molwis who have arrogated to themselves the right of dismissing the fourteen century old Rulings of the Math-hab. This seminar Molwi Saheb is no where near to the six authoritative Tabqaat (Categories) of Ulama which the Fuqaha have categorized. From his audacity and arrogant dismissal of Allaamah Ibn Aabideen’s istidlaal as being bereft of substance, the hues of Admut Taqleed are conspicuously visible. Great Fuqaha and the Aimmah-e-Mujtahideen also erred. The approbrium against the seminar Molwis is not because errors of illustrious Ulama are pointed out. Allaamah Ibn Aabideen inspite of his ilmi grandeur and lofty status in the firmament of the Ulama, is not free of error. Nevertheless, non-entities like the seminar Molwis should restrain their tongues and curb the ujub of their egos. They have absolutely no entitlement to blabber that Shaami’s istidlaal is bereft of substance even if the error may be glaring. 100 When addressing the errors of senior Ulama, decorum and dignity, honour and reverence are to be observed. After having said this, it is necessary to understand that by his contemptible dismissal of Allaamah Ibn Aabideen’s istidlaal, the seminar Molwi had dismissed the fatwa of the Math-hab upheld by a huge multitude of Fuqaha down the passage of Islam’s 14 century history. Allaamah Ibn Aabideen had endeavoured to vindicate with his istidlaal the 14 century ruling of the Hanafi Fuqaha, right from Imaam Abu Hanifah (rahmatullah alayh) down to the Akaabir Ulama of this century. If the seminar Molwi lacks the intellectual ability to fathom the rationale presented by Allaamah Ibn Aabideen in vindication of the prohibition of selling haqq-e-ta-alli, or even if there appears to be a rational deficiency in the deduction, the seminar Molwi should at least not have displayed such a disturbing lack of perceptive when he chose to comment on the istidlaal of Allaamah Ibn Aabideen. He should have understood that, after all, Allaamah Ibn Aabideen’s istidlaal was in vindication of the opinion of Imaam Abu Hanifah whose rationale would most assuredly have been more articulate and perhaps more comprehensible to Molwis of shallow comprehension. If Allaamah Ibn Abideen’s view or the view of any among the Akaabir Ulama is in conflict with the explicit fatwa that has been transmitted down the centuries from the Aimmah-e-Mujtahideen and their Ashaab, there will then be a valid reason to differ. But the difference or refutation will be stated with academic decorum and dignity. In such instances of non-conformity with a view expressed by a senior Aalim, it will be a bigoted person who will emotionally respond by saying that the junior is pitting himself against the senior Aalim. In this case the junior will simply be stating the view of the universally acknowledged senior Ulama, Fuqaha and Aimmah of the past fourteen centuries. In response to the argument presented by the seminar Molwi with regard to Allaamah Ibn Aabideen, it will suffice to dismiss it with the contempt it deserves. There is no substance in his argument. Irrespective of him having failed to comprehend the istidlaal of Allaamah Ibn Aabideen, and irrespective of any deficiency or conflict in the istidlaal of Allaamah Ibn Aabideen, the incontrovertible truth is that all the Hanafi 101 Fuqahaa have proclaimed a sale of haqq-e-ta-alli baseless and not permissible. This is the incontrovertible and immutable law of the Shariah which tolerates no transformation regardless of urban residential congestion in the cities. The hardships caused to the population crowded into apartments in cramped cities are not due to the Shariah’s prohibition of selling vacant space on top of a building nor is the sale of vacant space on top of building the solution for the problems of residence mentioned by the seminar Molwi. These hardships are the consequences of rabidly diseased rulers and capitalists having grabbed public property which Allah Ta’ala has made freely available, without payment of money, for all people all over the world. All the lands outside the city precincts which are not owned, the mountains and whatever they bring forth, the oceans with their vast treasures, the forests, the jungles, the deserts, the mines, the oil wells, etc., etc., are all for the free utilization of people. No one and no government have any right to debar people from taking free land for residential and cultivation or farming purposes. The Shariah does not recognize government and municipal ownership of land which Allah Ta’ala has declared Waqf for the use and ownership of whoever is prepared to take the land in his/her possession. The seminar Molwis are displaying stark ignorance of the causes of mankind’s hardships. They are mutely accepting the norms and practices of westernism, believing that the kuffaar concepts of generating money are the solution. Hence, the insane endeavour to offer Shar’i sanction to just every western economic concept. (6) One of the copyright Molwis contends: “Copyright is such a right with which benefit is derived in this age, and according to the Shariah it is permissible to derive benefit with it. Furthermore, in this age people buy and sell these rights considering them to be maal (tradable commodity) Hence, the definition of maal is applicable to it, and its sale is permissible.” The seminar Molwis who have blithely resolved to legalize every riba transaction and every new-fangled economic practice of the western 102 capitalists regardless of the conflict with the Shariah, have overlooked one peculiar by-product of their inordinate desire to forge an applicability of the definition of maal (tangible asset) to copyrights, patency rights, permit right, trademark rights and just every kind of imaginary right spawned by the concepts of the Jaahiliyyah of this age. In having defined copyrights and its kind of imaginary rights as maal, and that too tradable maal, they have effectively assigned it to the category of stock-in-trade which is a subject for Zakaat. In terms of their definition, Zakaat has to be paid on the value of the copyright, etc. In order to sustain their argument, should they concede the incumbency of paying Zakaat on the value of copyright, a tumultuous turmoil will be created in the law of Zakaat. Does the Shariah ordain Zakaat on intangible ‘assets’ which have been assigned to the maal category? Is Zakaat payable on huqooq and manaafi’? The dissertation of the proponents of Jaahiliyyah ‘rights’ on this topic will be interesting. Inspite of all the interpretations and misinterpretations on the definition of maal and their elaboration on Urf, the copyright Molwis have not succeeded in proving a single one of their claims. The argument which has been presented above is a hypothesis—a groundless assumption, the starting point of which is a fiction. The conclusions based on this fiction are likewise fallacies, unsubstantiated by Shar’i proofs. The ludicrous argument here comprises the following contentions: (a) Copyright is permissible. This is a claim without basis and has not been sustained by Shar’i proof, other than the fictitious claim of rights being maal (tradable commodities). (b) Copyright is a right from which monetary gain is derived in this age. On this basis it is permissible. (c) According to the Shariah, to derive profit from it is permissible. Again a claim without Shar’i basis. (d) People in this age consider copyright to be maal, hence it is maal according to the Shariah as well. This hypothesis posits that the Shar’i definition of maal is applicable to copyright and jaahiliyyah rights in general because the people of this age regard it to be maal. The implied proposal is that the definitions of the Shariah and its concepts should be re-assessed and re-interpreted to bring 103 within their scope copyright and every kind of jaahiliyyah right spawned by the western capitalist economic system. The re-assessment and re-interpretation of the entire Shariah, without restriction to copyrights and jaahiliyyah rights, have been advocated in the unacceptable concept of urf (custom) which the proponents of copyright have propounded. They have given urf such a wide latitude which allows for abrogation of Shar’i ahkaam which have been in force for the past fourteen centuries. It is argued that rulings have to change simply because people have become accustomed to a practice. Hence, the claim of copyright being tradable commodity and a valid right from which benefit is derived, is based primarily on the urf of the kuffaar which has originated these socalled rights. The arguments pertaining to maal, huqooq and manaafi’ are mere diversions introduced to mislead the unwary masses of Muslims. The deciding factor for the copyright liberal Molwis is the urf of the kuffaar. This ‘urf’ has elevated copyright to the status of tradable commodity, hence it is ‘logical’ for it to be maal in the Shariah. This is the line of reasoning adopted by the copyright Molwis. In fact, in their comprehension of urf they have subverted the entire Shariah and have made every Mansoos Hukm subservient to the urf of the kuffaar and juhala. In their understanding, Shar’i rulings should necessarily change with the vicissitudes and vagaries of the public, be it a kuffaar public. Jettisoning the Shar’i concept of Urf out of the parameters of the Shariah, and bringing it within the parameters of kuffaar urf, is the plot of the seminar, copyright Molwis. The Qur’aan and the Ahaadith are made subordinate to the newly interpreted concept of ‘urf’ of the copyright Molwis The diabolism of this innovated concept of urf is fraught with exceptionally grave implications and consequences for the Deen. The liberal Molwis are in fact executing par excellence the plot of subverting the Shariah, which the modernist mulhids and zindeeqs have initiated. The modernist call for the transformation of the Shariah by the stratagem of reinterpretation, while the liberal Molwis peddle the same cause under 104 the guise of urf to make Islam a pliable instrument of constant change to accommodate the vagaries of the wildly fluctuating dictates of the nafs. In view of the gravity of the baatil concept of urf of the liberals, a special treatise has to be prepared in refutation of it. If by the Will of Allah Ta’ala, life and circumstances offer companionship, a separate rebuttal of the highly erroneous concept of urf defined by the liberal Molwis will be forthcoming, Insha’Allah. It will suffice here to say that the Islamic concept of Urf (Norm/Custom) is subservient to the Shariah. It cannot abrogate Nass. Its scope is limited to details. It cannot annul the immutable principles of the Shariah. And by Urf is meant lawful custom of the Muslimeen. The haraam practices of the kuffaar do not come within the ambit of Shar’i Urf, regardless of the widespread prevalence of the norm. (8) Their argument of Haqq-e-Qisaas, Khula’, etc. In this argument the votaries of copyright contend that the Shariah allows monetary compensation for rights, e.g. Qisaas, Khula’, etc.